[2023] KEHC 24019 (KLR)

Okong’o Wandago & Company Advocates v County Government of Migori (Miscellaneous Civil Application 5 of 2020) [2023] KEHC 24019 (KLR) (20 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24019 (KLR)

Republic of Kenya

In the High Court at Migori

Miscellaneous Civil Application 5 of 2020

RPV Wendoh, J

October 20, 2023

IN THE MATTER OF THE ADVOCATES ACT & THE ADVOCATES REMUNERATION (AMENDEMENT) ORDER, 2014 AND IN THE MATTER OF RECOVERY OF TAXED COSTS AS BETWEEN ADVOCATES & CLIENTS

Between

Okong’o Wandago & Company Advocates

Applicant

and

County Government of Migori

Respondent

Ruling

1. This ruling relates to the Notice of Motion dated 18/8/2020, brought under the provisions of Section 51 (2) of the Advocates Act, Cap 16 and Paragraphs 4 & 7 of the Advocates Remuneration (Amendment) Order, 2014.

2. The applicant, Okong’o Wandago & Company Advocates seeks the following orders: -1. The court be pleased to order that the Certificate of Costs issued to the applicant, as against the respondent, be converted into a judgement and decree of this court and consequently, a judgement be entered for the applicant against the respondent for Kshs. 284,666/=.2. Interest do accrue on the sum of Kshs. 284,666/= at the rate of 14% per annum, with effect from 22/6/2018, until payment shall be made in full, as prescribed in paragraph 7 of the Advocates Remuneration Order.3. Costs of this application be awarded to the Advocates/Applicant.4. The court be pleased to tax and determine the costs of this application.

3. The application is based on grounds appearing on the face thereof and it is supported by the affidavit of Marvin Odero, an Associate working with the applicant. He deposed that the respondent retained the applicant to act for them and defend their interest in Migori High Court Misc. JR Application No. 3 of 2017 Lameck Onyango Mbani t/a Nyar Kadera Enterprises vs County Secretary & Chief Officer, Finance Government of Migori. There is no dispute on the issue of retainer and/or advocate - client relationship. Subsequently, the applicant issued and served the respondent with an itemized fee - note dated 18/5/2018 on 22/5/2018 (MO-1).

4. The respondent failed to honor the fee - note, tand he applicant filed and served the respondent with a bill of costs dated 24/2/2020. And a ruling was delivered on 14/7/2020. The bill was taxed and certified at Kshs. 284,666/= which is now claimed.

5. The application was opposed. Mr. Oliver Okeno, the Finance Officer in the office of the respondent, swore a replying affidavit dated 29/5/2023. He acknowledged that there was an existing debt of Kshs. 284,666/=. after taxation proceedings against the respondent; that on 6/9/2021, the office of the County Attorney wrote to the Chief Finance Officer to process payment and/or settle various taxation awards made in favour of the applicant amounting to Kshs. 2, 722, 665. 83/= inclusive of the withholding tax to the Kenya Revenue Authority (KRA); that the aforestated amount included the amount being claim in this miscellaneous cause.

6. It was further deposed that on 16/11/2021 the Office of the County Attorney made a payment of Kshs. 2, 539,589. 25 which included the taxed amount of Kshs. 284,666/=; that the amount of Kshs. 2, 539,589. 25 was paid to the respondent through the Government Integrated Financial Management Information System (IFMIS); that the payment voucher indicates that the amount paid included Kshs. 284,666/= and therefore there is no outstanding amount and it will be against public interest to make another payment to the respondent as it would be double payments.

7. The applicant filed its submissions which I have duly considered.

8. The center of the controversy is the alleged pending payment of Kshs. 284,666/= owed by the respondent for the legal services procured by the applicant in Migori High Court Misc. JR Application No. 3 of 2017 Lameck Onyango Mbani t/a Nyar Kadera Enterprises vs County Secretary & Chief Officer, Finance Government of Migori. The applicant maintains that it has not been paid but the respondent deposed that it settled the said amount.

9. The alleged pending taxed amount of Kshs. 284,666/= is not disputed. I have considered the annextures by the respondent showing the alleged payments that was made. Annexture “OO-2” to the respondent’s replying affidavit is a letter addressed to the Chief Finance Officer of the respondent by the then County Attorney Ms. Matiko Mang’era. In the letter, the County Attorney asked for a settlement of Kshs. 2, 722, 665. 83/= to the applicant being the outstanding legal fees for the various cases the applicant represented it. Item no. 5 on the list is this miscellaneous cause and the amount requested to be settled was Kshs. 284,666/=.

10. Further, annexture “OO-3” is the payment voucher indicating the payee’s name as the applicant herein. The particulars of the payment is for the services of legal services rendered as per the various taxation awards. The total amount paid was Kshs. 2, 722, 665. 83/= which is the same amount reflected in the advice letter from the office of the County Attorney dated 6/9/2021. The Finance Officer deposed that the payments are made through IFMIS. On the face of the payment voucher there is a stamp indicating that the IFMIS was processed on 1/11/2021.

10. The respondent further deposed that a withholding tax of Kshs. 311,375. 60/= was deducted and therefore the final amount paid to the applicant’s account was Kshs. 2, 539,589. 25. This amount is reflected in the statement from the Central Bank of Kenya dated 29/5/2023. The statement shows that the aforementioned amount was paid to the applicant’s firm on 16/11/2021.

11. This court finds that the applicant was paid the alleged outstanding taxed amount of Kshs. 284,666/= by the respondent.

12. In the end, the application dated 18/8/2020 lacks merit and is hereby dismissed with no orders as to costs.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 20TH DAY OF OCTOBER, 2023. R. WENDOHJUDGERuling delivered in the presence ofMr. Odero for the Applicant.No appearance for the Respondent.Emma & Phelix Court Assistants.